Plaintiff was a passenger in a motor vehicle which was crossing a bridge in Jacksonville. The Buckman Bridge traverses the St. Johns River and carries four lanes of Interstate 295 traffic in each direction. The Plaintiff — and her sister-in-law — were traveling behind two other vehicles in the second of the four travel lanes.

About a mile onto the bridge, all three vehicles came to a sudden stop because a twelve-foot ladder was lying in the middle of their travel lane. Within seconds of the sudden stop, the minivan was struck from behind by a Coca-Cola service van, causing injuries to the Plaintiff.

Before the collision, two witnesses observed a pickup truck in the right emergency lane. According to the Plaintiff, there was a man standing outside the truck who was “focused on the ladder in the road like he was trying to retrieve it.” The driver of the pickup truck was never identified.

The Plaintiff brought a negligence claim against Coca-Cola and its driver and an uninsured motorist claim against State Farm. After the Plaintiff settled with Coca-Cola and its driver, a jury trial was held on the Plaintiff’s uninsured motorist claim against State Farm.

Following the presentation of the Plaintiff’s case, State Farm moved for a directed verdict arguing that (1) there was no evidence that the ladder came from a vehicle other than circumstantial evidence that did not exclude other possible explanations; and (2) even if the ladder came from a vehicle, there was no evidence of a negligent act by the vehicle’s owner or operator that caused the ladder to end up on the roadway.

The trial court questioned whether there were other plausible — non-vehicular — explanations for the ladder in the road given that the Buckman Bridge was not a pedestrian bridge, that there were no overpasses over the bridge, and that the ladder was located at least a mile along the bridge.

When State Farm’s counsel replied that a pedestrian could have carried the ladder to that point on the bridge, the trial court rejected that explanation as not being credible and denied State Farm’s motion for a directed verdict.

Later, State Farm renewed its motion for a directed verdict. When the court again asked whether there were any plausible theories for how the ladder got on the bridge other than having come from a vehicle, State Farm’s counsel did not offer any additional theories, but argued that the Plaintiff’s case rested on three inferences — (1) that the ladder came from a vehicle; (2) that the owner or operator of that vehicle was negligent; and (3) that the negligence caused the ladder to end up on the roadway. State Farm contended that the Plaintiff had to establish the first two inferences to the exclusion of all other reasonable inferences.

Counsel further argued that the ladder could have fallen from a vehicle without any negligence of the owner or operator because the ladder could have been secured by faulty or defective equipment. The trial court found this explanation improbable and denied State Farm’s motion.

At the conclusion of the trial, the jury returned a verdict finding the phantom motorist sixty percent at fault and the Coca-Cola driver forty percent at fault. After denying State Farm’s renewed motion for directed verdict, the trial court entered a final judgment for the Plaintiff. This appeal followed.

To prove a prima facie case of negligence . . ., circumstantial evidence can be used “as effectively and as conclusively” as direct positive evidence, but if a party “depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.”

Davie Plaza, LLC v. Iordanoglu, 232 So. 3d 441, 445 (Fla. 4th DCA 2017) (quoting Nielsen v. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960)). “The purpose of this rule against stacking inferences is ‘to protect litigants from verdicts based on conjecture and speculation.’ ” Broward Exec. Builders, 192 So. 3d at 537 (quoting Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th DCA 2008)). “In a negligence action, if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the ‘exclusion of all other reasonable inferences,’ but then stacks further inferences upon it to establish causation, a directed verdict in favor of the defendant is warranted.” Id.

Here, State Farm claims that the trial court erred in denying its motion for directed verdict on the Plaintiff’s uninsured motorist claim because the Plaintiff improperly stacked inferences — based on circumstantial evidence — to prove that a phantom motorist’s negligence caused the Plaintiff’s injuries. Specifically, State Farm claims that the Plaintiff stacked the following three inferences: (1) an unidentified phantom motor vehicle was carrying the ladder; (2) the owner or driver failed to make reasonable efforts to secure the ladder; and (3) the owner or driver’s failure to properly secure the ladder caused it to fall on the roadway.

However, we conclude that there are only two necessary inferences in this case: (1) the ladder fell on the roadway from a phantom motor vehicle; and (2) the ladder fell from the phantom vehicle because the owner or operator failed to properly secure it.

The trial court correctly found that the first inference was established to the exclusion of all other reasonable inferences, based on Denoia v. Hartford Fire Insurance Co., 843 So. 2d 285 (Fla. 3d DCA 2003). In Denoia, the Third District held that the plaintiff could seek uninsured motorist benefits for injuries he sustained when his vehicle was struck by a twelve to fifteen-foot steel beam lying in the highway where the only plausible explanation for its being on the roadway was that it had been improperly secured on a truck and had fallen from the truck onto the roadway. Id. at 286-87.

The inference in this case was even stronger than in Denoia given the location of the twelve-foot ladder in the middle of a traffic lane a full mile onto a busy interstate bridge that was inaccessible — by all accounts — to pedestrians. The inference was further bolstered by testimony (1) that a pickup truck had pulled over in the emergency lane; and (2) that the driver of the truck was focused on the ladder as if he was trying to retrieve it, but got in his truck and drove off shortly after the collision occurred.

We also reject State Farm’s argument that a directed verdict was mandated by Allstate Insurance Co. v. Bandiera, 512 So. 2d 1082 (Fla. 4th DCA 1987). In Bandiera, the Fourth District held that a passenger could not recover uninsured motorist benefits for injuries he sustained when a concrete cinder block was propelled through the automobile’s windshield, notwithstanding his claim that there was a permissible inference that the block originated from other vehicles traveling in front of him, where it was just as plausible that the block was thrown at the car by pedestrians standing on the side of the road. Id. at 1083.

As previously explained, it is simply not plausible that the ladder in this case was thrown onto the bridge by a pedestrian. Because the inference that the ladder came from a phantom vehicle was inescapable, it would constitute an acceptable basis for the second inference that the owner or operator of that vehicle was negligent in failing to properly secure it. The Fourth District recognized as much in Bandiera when it observed: “If the inference that the block came from another phantom vehicle is inescapable then it may constitute an acceptable premise for the second inference that the driver of that phantom vehicle was negligent.” Id.

Once an initial inference has been established to the exclusion of all other reasonable inferences, any further inference based upon the initial inference is permissible if it is reasonable, i.e., if it accords with logic and reason or human experience. Tillery v. Standard Sand & Silica Co., 226 So. 2d 842, 846-48 (Fla. 2d DCA 1969) (citing Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403, 406 (Fla. 1954)). “A jury question is presented when the evidence is susceptible to inference that would allow recovery even though there are opposing inferences that are equally reasonable.” Castillo v. E.I. Du Pont De Nemours & Co., 854 So. 2d 1264, 1279 (Fla. 2003); see also Streeter v. Bondurant, 563 So. 2d 729, 732 (Fla. 1st DCA 1990) (“It appears . . . that the circumstances established by appellant’s evidence are susceptible of a reasonable inference supporting the claim of negligence, and the circumstances are also susceptible of reasonable inferences which refute the claim. In this situation, a jury issue is presented . . . .”).

At a minimum, the inference that the ladder fell from the phantom motor vehicle due to the owner or operator’s negligence — as opposed to some other cause such as a product defect — was reasonable. Florida courts have recognized that a truck operator has the responsibility to secure the load the truck is carrying. Denoia, 843 So. 2d at 286. Furthermore, the Florida statutes require loads to be secured by multiple methods to prevent them from dropping, falling, or otherwise escaping from the vehicle. See §§ 316.520 & 316.525, Fla. Stat. (2008).

Thus, the trial court properly denied State Farm’s motion for directed verdict and submitted the case to the jury.

Most lawyers are going to file a possible medical malpractice action in 2 or more counts if it is possible that a court or appellate court might consider that the claimant was required to comply with the requirements of the Florida Medical Malpractice Act. The period of the prosecution of a medical malpractice action is generally only 2 years from the date the claimant knew or should have known of the malpractice.

Stated differently, if the Court determines that the act or omission at issue will be decided by “whether the claim relies on the application of the medical malpractice standard of care” then the case will sound in medical malpractice not simple or ordinary negligence.

The risk is great not to anticipate that the court could dismiss the lawsuit and the time for preserving the medical malpractice claim has passed.

In this particular case the claimant was very fortunate the appellate court agreed with the claimant’s lawyer’s position on ordinary negligence.

In this recent case, the claimant visited visited Dr. Zachos, a urologist, at his office to have a catheter removed. In the examination room, the doctor provided a step for the claimant to use to ascend onto the examination table. The doctor then moved the step away and performed the procedure.

After the procedure, the doctor told claimant to go to the front desk and schedule another appointment for the following week. The doctor then left the examination room. Claimant began to descend from the examination table, but because the step had been removed, she fell onto the floor.

She alleged that the failure to replace the step created a known dangerous condition, and the doctor knew or should have known that he had not replaced the step for her. She claimed she suffered serious and permanent injuries due to her fall.

When evaluating whether a complaint sounds in ordinary or medical negligence, courts must determine from the allegations “whether the claim arises out of the rendering of, or the failure to render, medical care or services.” Doe v. Baptist Primary Care, Inc., 177 So. 3d 669, 674 (Fla. 1st DCA 2015) (citations omitted); see also § 766.106(1)(a), Fla. Stat. (2011) (defining a claim for medical negligence or malpractice). The core inquiry is “whether the claim relies on the application of the medical malpractice standard of care.” Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1286 (Fla. 5th DCA 2014). Merely “labeling allegations as ‘ordinary negligence’ is not dispositive.” Shands Teaching Hosp. & Clinics, Inc., v. Estate of Lawson, 175 So. 3d 327, 331 (Fla. 1st DCA 2015) (en banc). “Courts must look beyond the legal labels urged by plaintiffs and ‘must[ ] apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’ ” Id. (alteration in original) (quoting Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So. 3d 776, 778 (Fla. 4th DCA 2009)).

As we have explained before, the mere fact that “a negligent act occurred in a medical setting doesn’t make it medical negligence.” Lawson, 175 So. 3d at 332; see e.g., Tenet St. Mary’s Inc. v. Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (medical center employee inadvertently kicking a patient); Lake Shore Hosp., Inc. v. Clarke, 768 So. 2d 1251 (Fla. 1st DCA 2000) (patient’s slip and fall in hospital room); Broadway v. Bay Hosp., Inc., 638 So. 2d 176 (Fla. 1st DCA 1994) (collapse of hospital bed). We have described ordinary negligence as something jurors can resolve “by referring to common experience,” whereas medical negligence requires “the help of experts to establish what is acceptable, appropriate, and prudent” because jurors cannot determine through “common experience” whether medical standards of care were breached. Lawson, 175 So. 3d at 332-33.

While there is no doubt that the line between ordinary and medical negligence may at times be difficult to draw, at this stage of the proceedings we do not believe claimant’s claim sounds in medical negligence. Jurors can use their common experiences to evaluate the act of placing and removing a step used by someone to get on and off a table, just as they could evaluate the act of pulling a chair out from under someone about to sit down. We note that our decision today rests solely on the allegations within the four corners of the amended complaint and should not foreclose a later challenge should the case morph into a medical negligence claim. Because we conclude that the amended complaint alleges a claim of ordinary negligence, we reverse and remand for further proceedings.

It is not uncommon for lawyers to represent an individual Plaintiff that is injured one incident and then, while the Plaintiff’s lawsuit is pending, the Plaintiff is involved in subsequent collision or traumatic event. Generally, the subsequent event will aggravate the Plaintiff’s pre-existing conditions or cause new injuries to the Plaintiff, or both.

The defense lawyer, representing each of the defendants, alleged to have been negligent and the cause of the Plaintiff’s injuries, will each ask the jury to separate the injuries if possible, or simply determine that the jury’s uncertainly as to “who did what” should result in the Plaintiff “failing to have carried his or her burden of proof on medical causation of injuries.”

The defense lawyer’s proven tool for success is confusion, uncertainty, and doubt. The good news is that Florida jury instructions has a provision that covers just that very situation when both cases are joined in one lawsuit and before one jury.

Each defense lawyer will attempt to confuse the jury as to which event really caused the Plaintiff’s injuries.

501.5 OTHER CONTRIBUTING CAUSES OF DAMAGES 

• Aggravation or activation of disease or defect:

If you find that the (defendant(s)) caused a bodily injury, and that the injury resulted in [an aggravation of an existing disease or physical defect] [or] [activation of a latent disease or physical defect], you should attempt to decide what portion of (claimant’s) condition resulted from the [aggravation] [or] [activation]. If you can make that determination, then you should award only those damages resulting from the [aggravation] [or] [activation]. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by (claimant).

• Subsequent injuries/multiple events:

You have heard that (claimant) may have been injured in two events. If you decide that (claimant) was injured by (defendant) and was later injured by another event, then you should try to separate the damages caused by the two events and award (claimant) money only for those damages caused by (defendant). However, if you cannot separate some or all of the damages, you must award (claimant) any damages that you cannot separate as if they were all caused by (defendant).

Now, what if the Judge refuses to join the subsequent event in the same pending case? Plaintiff could suffer inconsistent verdicts and have to try each case separately. In separate trials, the defense counsel will argue that the other traumatic event is what caused the death or injuries to the Plaintiff not the event that the defense lawyer is defending.

Most Judges will join the cases for a single trial but in a recent Florida case, the Judge refused to do so and the Plaintiff’s lawyer knew that the client would suffer “irreparable harm” if this was not overruled.

                    PROCEDURAL HISTORY  

Mr. Tracey’s first lawsuit alleged that on May 12, 2011, Ms. Tracey sustained significant injuries when a malfunctioning automatic sliding door at a Walgreens store hit her and knocked her to the ground.¹ The complaint further alleged that as a result of the injuries sustained in this incident, Ms. Tracey died on June 6, 2011.

The second action alleged that Ms. Tracey, while recuperating at the Brentwood Senior Living Community from the Walgreen accident, sustained aggravated injuries as a result of inadequate care, including another fall on June 3, 2011.² After the second fall, Ms. Tracey was transported to the hospital where she died three days later. Mr. Tracey alleged that Brentwood Senior Living Community and the facility management company (hereinafter “Brentwood”) were negligent in the treatment of Ms. Tracey and violated her rights as set forth in section 429.28, Florida Statutes (2011).

Mr. Tracey moved to consolidate the two actions pursuant to Florida Rule of Civil Procedure 1.270(a). He noted that both lawsuits include wrongful death claims which are based on successive injury-producing incidents involving Ms. Tracey. The lawsuit filed against Brentwood alleges that Brentwood’s actions worsened and aggravated injures which Ms. Tracey suffered in the Walgreen incident. Mr. Tracey alleged that the defendants in both cases proximately caused or contributed to the death of Ms. Tracey. He argued that consolidation would prevent the substantial risk of inconsistent verdicts, because a jury in the Walgreen trial could find that the second accident caused all the damages, whereas a jury in the Brentwood trial could find that the first accident caused all the damages, thereby causing a repugnant verdict, contrary to manifest justice.

                                 CONSOLIDATION OF CASES

In a case involving injuries received in two separate automobile accidents that occurred about a month apart, the Florida Supreme Court has held that the trial court should have consolidated the cases because the damages sustained were not readily apportionable. Lawrence v. Hethcox, 283 So. 2d 41, 43-44 (Fla. 1973). In Lawrence, the court reasoned as follows:

If . . . it appears that negligence of both defendants contributed proximately to cause an injury for which plaintiff is entitled to recover, it may be a matter entailing great difficulty of proof as to the amount in which each defendant is responsible. . . . To require separate actions and separate trials in such a situation would enhance the difficulties of proof and tend to obstruct, rather than to promote, justice.Id. (quoting Kraft v. Smith, 148 P.2d 23, 26 (Cal. 1944)).

In U-Haul Co. of Northern Florida, Inc. v. White, 503 So. 2d 332, 333 (Fla. 1st DCA 1986), the First District addressed a similar situation where the defendants wanted to consolidate three cases that arose from the same incident, the cases were identical in all respects except for damages, and the three cases involved the same counsel for all of the parties. The First District quashed the order denying the motion to consolidate, holding that the interests of judicial economy and the possibility of inconsistent verdicts outweigh any prejudice that might be caused by a delay when the cases were consolidated.

In a case factually similar to the present case, Hickey v. Pompano K of C, Inc., 647 So. 2d 270, 271 (Fla. 4th DCA 1994), the complaint alleged that the plaintiff suffered injuries as a result of two separate slip and fall accidents occurring three weeks apart. The plaintiff alleged that the first fall injured her knee and made her more susceptible to the second fall, which aggravated her previous knee injury. The Fourth District held that the trial court departed from the essential requirements of law in ordering separate trials against the two defendants and that there would be no adequate remedy on appeal. Id. The Fourth District reasoned as follows:

[I]f these cases are tried separately, the jury in the trial arising out of the first accident could well be persuaded that most of the damages resulted from the second accident, and a different jury could determine in the trial arising out of the second accident that most of the damages resulted from the first accident. Since a low verdict, in and of itself, does not require a new trial, it is highly unlikely that the plaintiff would be able to get post-trial or appellate relief. Plaintiff would thus have no adequate remedy by appeal                        

As in Hickey and Lawrence, Mr. Tracey’s complaint against Brentwood alleges that the fall and care at the nursing home aggravated Ms. Tracey’s preexisting injury that occurred at the Walgreens store. Further, the complaints in both cases allege that the injuries that Ms. Tracey sustained as a result of the defendants’ negligence resulted in her death. Following the reasoning in Lawrence and Hickey, if there are two separate trials in the present case, the jury in the Walgreen trial could find that Ms. Tracey’s death resulted from the second fall, an infection, dehydration, and malnutrition, and the jury in the Swanholm trial could find that Ms. Tracey’s death was the result of the injuries she sustained at the Walgreens store. Since a low verdict, in and of itself, would not require a new trial, Mr. Tracey would have no adequate remedy on appeal.

We note that the Fourth District reached the opposite conclusion in Pages, 652 So. 2d at 866, which involved an automobile accident in which one passenger was killed and another passenger was permanently and severely brain damaged. The Fourth District held:

A refusal of a trial court to grant consolidation in separate and distinct causes of action, involving separate and distinct damages, is not an abuse of discretion which will automatically result in our granting certiorari relief merely because the actions arise out of the same accident. . . . In each case the damage considerations are entirely different and unique, both qualitatively and quantitatively. The elements of damages and testimony thereon, including the presentation of expert witnesses, would be separate and distinct for the wrongful death claim and for the personal injury claim.

In Pages, that court’s reasoning was based on the fact that one claim was for wrongful death and the second claim was for personal injuries. In the present case, both complaints allege that the injuries Ms. Tracey sustained as a result of the defendants’ negligence resulted in her death.

The Fourth District also found that consolidation was not appropriate in Barnes v. Meece, 530 So. 2d 958, 959 (Fla. 4th DCA 1988), where the defendant in a wrongful death/personal injury action moved to consolidate his case with a wrongful death/medical malpractice action. One of his affirmative defenses was that the decedent died as a result of the subsequent medical malpractice of the defendants in the malpractice action. Id. at 958. The trial court denied his motion to consolidate, and the defendant filed a petition for writ of certiorari.

The Fourth District did not find merit in the defendant’s argument that two separate trials may result in inconsistent verdicts because, it noted, the defendant had “available the recourse of a separate and independent action for subrogation against the health care providers . . . .” Id. at 959. The court also noted that complex issues that are likely to arise in a medical malpractice action are not appropriate to interject into a personal injury suit. Id. We note that the reasoning in Barnes does not apply to the case at bar because the present case does not involve a medical malpractice action, and more importantly, Mr. Tracey would have no recourse if separate trials resulted in inconsistent and repugnant verdicts.

In its order, the trial court mistakenly relied on State Farm Florida Insurance Co. v. Bonham, 886 So. 2d 1072, 1075 (Fla. 5th DCA 2004), in denying the motion to consolidate. In State Farm, the plaintiff sued the seller and broker of a house alleging that they concealed and failed to disclose sinkhole damage to the home prior to her purchase of it. Id. at 1073-74. She also filed a suit against State Farm, which sought a declaration of her rights under her homeowner’s insurance policy. Id. at 1074. Consequently, in State Farm the lawsuits involved different causes of action based on dissimilar theories and featured different measures of damages.

                                            CONCLUSION

Accordingly, the petition for certiorari is hereby granted and the trial court’s order denying the motion to consolidate is quashed.

Petition for writ of certiorari granted. (VILLANTI and KELLY, JJ., Concur.)__________________

¹The defendants named in the first lawsuit were Walgreen Co., Florida Door Control, Inc., a/k/a MWG Enterprises, Inc., Florida Door Control of Orlando, Inc., The Stanley Works Inc. d/b/a Stanley Access Technologies a/k/a Stanley Black & Decker, Inc., and Stanley Access Technologies, LLC.

Whenever an event occurs that leads to the serious injury or death of anyone, you will see no one claims responsibility over the instrumentality or location where the incident occurred. In fact, if you pick up your automobile insurance policy and look at all the things that are included with your policy will be section referenced “what to do after an accident.”

1. Never admit liability or fault;
2. Notify your insurance company immediately;
3. Do not speak to the injured party or apologize;
4. Never admit responsibility for the collision.

The lawyers for the defendants will argue it was “an unavoidable accident or a freak accident.” You will hear the insurance lawyers claim that this specific type of “harm” was not foreseeable.

Whether it was the absence of sufficient lightening or the failure to supervise the traffic conditions on a private roadway or gated community, it will be claimed that the person who omitted to do something or failed to warn, will claims that “we had no legal duty” to act or remedy the condition or to warn.” If the warning signs were not existent or inadequate in sign or visibility, it was just an event that  never could be expected  or was just a freak occurrence.

In civil litigation lack of duty is a legal escape hatch party alleged to be liable will seek to take to exit the litigation.

Landowners, tenants, occupiers of the property often hire property managers and security personnel who act as the eyes and ears of the landowners. The landowners have certain non-delegable duties that cannot be passed on to the shoulders of others. The task can be assigned or delegated to a third party but the failure of the property manager or security personnel to discharge the duty owed by the landowner to other third-party invitees on the property, remains the obligation of the landowner even if the party who was contracted to perform the job fails to do so..

In one Florida case, the injured party was legally walking on a roadway when she tripped and fell over a water valve cover (the valve) that was protruding in the roadway, causing her to sustain injuries.

The valve was on Captiva Drive in an area used by pedestrians. Defendant Lee County owns Captiva Drive and Defendant Island Water owns the valve and the pipes underneath it.

Cantalupo alleged that Island Water owed her a duty to exercise reasonable care for her safety. She further alleged that Island Water breached that duty by negligently failing to maintain the valve in the roadway, failing to inspect the valve to determine whether the protruding valve constituted a hazard to pedestrians, failing to warn Cantalupo of the danger of the protruding valve, and failing to correct the unreasonably dangerous condition of the valve.

In addition, Cantalupo alleged that Island Water knew or should have known of this foreseeably dangerous condition but failed to take any precautions to alleviate the dangerous condition or warn of it.

At the time of Cantalupo’s accident, the asphalt surrounding the valve had separated from around the valve. It appeared that the asphalt had sunk such that the asphalt was no longer flush with the valve, causing the valve to protrude above the asphalt. Approximately three months after the accident, Island Water had repairs made to the asphalt around the valve to bring the asphalt flush with the valve.

Here, the parties seem to dispute on appeal whether the issue of Island Water’s control of the roadway was controverted. Island Water acknowledged the ability to control the roadway under circumstances when its equipment caused damage or needed repairs. And the trial court found, “It is uncontroverted that [Island Water] has the ability to access and affect the road around the valve if such is required in order to repair or maintain the valve.” But the issue that Lee County raises is whether Island Water had the ability to control the roadway around the valve absent the need for repairs to Island Water’s equipment.

“As a general rule, utilities have ‘a duty to exercise care, both in the location or construction and in the use and maintenance of its lines,’ poles, and equipment.” Webb v. Glades Elec. Coop., Inc., 521 So. 2d 258, 259 (Fla. 2d DCA 1988) (quoting Padgett v. W. Fla. Elec. Coop., Inc., 417 So. 2d 764, 766 (Fla. 1st DCA 1982)). Applying the McCain analysis, when Island Water decided to operate utilities in a public roadway, it assumed a common law duty to maintain its valves to allow the public to safely navigate on or around them. On the date of the accident, the valve was sticking up one and a half to two inches above the asphalt. It was reasonably foreseeable that someone would trip over a valve that was protruding above the roadway.

Even if the valve protruded due to the erosion of the asphalt around it, Island Water is not absolved of its responsibility to keep the public safe from a known tripping hazard. For instance, in City of Tampa v. Jorda, 445 So. 2d 699, 700 (Fla. 2d DCA 1984), this court determined that the trial court properly submitted to the jury the issue of the negligence of both the city and the landowner plaintiff. There, the plaintiff fell when she stepped on the city’s water meter box in her front yard. The meter box had become tilted because some of the sand under the meter box had fallen away. The meter box gave way when the plaintiff stepped on it, thus causing her to fall. Id. Similarly, Island Water’s valve became a hazard when it protruded above the pavement when the asphalt around it eroded or settled. See Utter v. Jacksonville Utils. Mgmt., Inc., 363 So. 2d 829, 829 (Fla. 1st DCA 1978) (reversing dismissal of amended complaint when it alleged a water utility’s “negligent maintenance of its water meter and the creation or failure to repair a hazardous hole surrounding it”); City of Niceville v. Hardy, 160 So. 2d 535, 537 (Fla. 1st DCA 1964) (stating in a negligence case that the plaintiff’s theory of recovery for a dangerous and defective condition was sound when the plaintiff’s foot slid into a water meter box owned by the city and the meter box, due to soil erosion, had become tilted so that the lid would not stay on the box).

Section 90.407 provides as follows:

Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.

“It is well settled that a public or private entity which owns, operates, or controls a property, including a roadway, owes a duty to maintain that property, and a corresponding duty to warn of and correct dangerous conditions thereon.” Pollock v. Fla. Dept. of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004). In Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So. 3d 120, 122 (Fla. 2d DCA 2015), this court also recognized that a party who exercises control over some premises has a corresponding duty and reversed a summary judgment in favor of the defendant.

There, the fact that an employee of the defendant removed the pipe that caused the injury after the accident was a factor in determining whether the defendant exercised control of the premises. Id. at 123. In considering all the evidence, this court determined that issues of material fact existed regarding whether the defendant exercised control of the area where the plaintiff was injured.

The appellate court reversed the final summary judgment in favor of Island Water and the order of December 16, 2015, that sets forth findings on the motion for reconsideration regarding subsequent remedial measures. The appellate court also reversed the order in limine of December 1, 2015, as to the ruling on subsequent remedial measures and the legal duty of Island Water. We remand for further proceedings in the trial court.

We have often have gatherings in our homes to celebrate holidays or birthdays. We often have high school graduation parties in our neighborhoods where not everyone that attends is of legal drinking age or even invited. Some gatherings are alcohol free but many serve alcohol to those attending or make alcohol available at will to those attending even the party crashers. This can lead to lawsuits against the homeowners, and others who “provide the alcohol to underage drinkers or habitual drunkards who later injury others off your property.  

Florida law provides that if the you provide a minor or knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

768.125 Liability for injury or damage resulting from intoxication.—A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

In one recent Florida case, Stoneybrook is a golf club whose employees serve alcoholic beverages both inside the clubhouse and on the golf course. Nathan Hartman is a golfer who routinely played golf at Stoneybrook and purchased alcohol from Stoneybrook employees.

After playing a round of golf and consuming alcohol, Hartman caused an automobile crash that resulted in the death of the Decedent. At the time of the crash, Hartman had a blood alcohol content of .302.

Gonzalez sought damages for the wrongful death of the Decedent against Stoneybrook pursuant to Florida’s reverse dram shop liability statute, codified at section 768.125, Florida Statutes (2014).

Stoneybrook lawyers sought a summary judgment to end the litigation. In response,Gonzalez had responded to the motion for summary judgment by filing the depositions of Hartman, a friend of Hartman named David Ziglar, and the relevant Stoneybrook employees.

The depositions established that Hartman had played golf at the club approximately seventy to eighty times over a three-year period prior to the crash. Ziglar testified in his deposition that Hartman was intoxicated virtually each time they played together at Stoneybrook.

He added that Hartman normally started the day by drinking two strongly poured whiskey and Cokes in sixteen-ounce Styrofoam cups poured by bartenders who were familiar with Hartman. At the turn at the midpoint of the golf round, Hartman normally went to the Stoneybrook clubhouse and purchased another strongly poured sixteen-ounce whiskey and Coke and would often buy additional drinks from the “cart girl, a Stoneybrook employee.”

Ziglar testified that, on the day of the crash, Hartman had four such drinks, including approximately eight ounces of straight alcohol poured by the “cart girl” on the course. In addition, Gonzalez filed an affidavit from Dr. William Hearn, the former Laboratory Director of the Miami-Dade County Medical Examiner’s Department, in which he opined that Hartman’s blood alcohol content when he left Stoneybrook was over .27.

As this court previously noted in Evans v. McCabe 415, Inc., the Florida Supreme Court has found that under the habitual drunkard exception the plaintiff must present evidence that the vendor knew that the alcohol purchaser was a habitual drunkard. 168 So. 3d 238, 239 (Fla. 5th DCA 2015) (citing Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d 1042, 1048 (Fla. 1991)).

This knowledge element may be met by the presentation of sufficient circumstantial evidence. Ellis, 586 So. 2d at 1048-49 (citing Sabo v. Shamrock Commc’ns, Inc., 566 So. 2d 267, 269 (Fla. 5th DCA 1990), approved sub nom. Peoples Rest. v. Sabo, 591 So. 2d 907 (Fla. 1991)). As stated in Ellis, “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard.” Id. at 1048.

Based on our review of the record, we conclude that Gonzalez offered sufficient evidence to raise a factual dispute not resolvable by summary judgment as to whether Hartman was habitually addicted to alcohol and, if so, whether Stoneybrook knew of his addiction. Therefore, we reverse the summary judgment and remand for further proceedings consistent with this opinion.REVERSED and REMANDED. (ORFINGER and LAMBERT, JJ., concur.)

This statute vests both the circuit courts and the county courts in State of Florida with the power to enter declaratory judgments when the present facts appear that there is a bona fide, actual, present, practical need for the declaration by the court that impacts a controversy as to a state of facts involving some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts.

The statute is means of testing whether an insurance company’s demand that its insured appear for an Independent Medical Examination ( IME) when the insured’s lawyer provided notice to the insurance company, that the automobile insurance company’s insured is out of town and can’t be present for the IME on that date and time.

Can the insured’s right to continued PIP benefits be cutoff an insured’s benefits for “failure to attend a requested IME by the PIP insurance company? It involves unfair claims handling which is in violation of Florida’s Notice of Civil Remedies provisions.

Another example that is very suitable for declaratory judgment, involves whether an automobile he Insurance Company can set the insured and another injured party down for recorded statement and then separate one person from the other when each is being questioned when the policy fails to have a provision in the policy “providing that each claimant can be sequestered?”

Declaratory judgments are often used when there is an issue whether an existing policy of insurance covers a loss of a homeowner or automobile insured. Did the water leaking into the shower from a pipe that was penetrated by a root causing the shower to flood causing tile and grout damage, come under the terms of the homeowner’s policy as a covered loss or an excluded loss.

A recent decision by the second district court of appeals in Florida is discussed. In TREASURE CHEST POKER, LLC, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, the appellate court decided that the petition for relief did not invoke the jurisdiction of the court because not all the elements of a valid declaratory judgment were present.

The appellate court reversed the judgment and remand with directions to dismiss the complaint with prejudice. The facts were that Treasure Chest operated free poker games in businesses regulated by the Department’s Division of Alcoholic Beverages.

The Department issued notices to Treasure Chest’s customers stating it had received a complaint that Treasure Chest was conducting “games of chance” on their premises. It further advised that “it is a violation of Chapter 849, Florida Statutes, to allow or permit gambling implements or gambling activities on your licensed premises.”

The notices also state “[n]o administrative or criminal charges are being filed at this time.” Treasure Chest alleges by issuing these notices the Department “has placed [Treasure Chest] and its customers in fear that they will be criminally or administratively prosecuted for engaging in activities that are, in fact, legal.”

The complaint asked the court to declare that Treasure Chest’s poker games did not violate chapter 849 “or any other law” and accordingly, the Department had no authority to issue the notices of noncompliance. We conclude Treasure Chest’s complaint was insufficient to invoke the jurisdiction of the circuit court to enter a declaratory judgment.

The standard for determining the sufficiency of a declaratory judgment complaint is set forth in May v. Holley, 59 So. 2d 636 (Fla. 1952). 

We conclude Treasure Chest’s complaint was insufficient to invoke the jurisdiction of the circuit court to enter a declaratory judgment.The standard for determining the sufficiency of a declaratory judgment complaint is set forth in May v. Holley, 59 So. 2d 636 (Fla. 1952).

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Thus, absent a bona fide need for a declaration based on present, ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief.” Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, 661 So. 2d 1190, 1193 (Fla. 1995); see also Bryant v. Gray, 70 So. 2d 581, 584-85 (Fla. 1954); Grable v. Hillsborough Cty. Port Auth., 132 So. 2d 423, 425-26 (Fla. 2d DCA 1961); Colby v. Colby, 120 So. 2d 797, 799-800 (Fla. 2d DCA 1960). Courts will not determine the construction or validity of a statute or ordinance in the absence of a justiciable controversy. Ervin v. City of North Miami Beach, 66 So. 2d 235, 236-37 (Fla. 1953). Where the statute or ordinance at issue is criminal, this court has held that generally, unless someone is charged with violating the statute or prosecution is imminent, a declaratory judgment action to determine the construction or validity of a criminal statute lacks a justiciable controversy. El Faison Dorado, Inc. v. Hillsborough County, 483 So. 2d 518, 519 (Fla. 2d DCA 1986); Duran v. Wells, 307 So. 2d 259, 261-62 (Fla. 2d DCA 1975).

Our decision in El Faison is instructive. The appellant was a club that brought an action for declaratory relief as to the constitutionality of a county ordinance prohibiting the exhibition of animals fighting. 483 So. 2d at 519. Explaining why the case did not present a justiciable controversy we stated:

The complaint merely says that “[the Club] and its members could perhaps be subject to future arrests and convictions if they continue to engage in the sport of cockfighting.” There is no allegation and no evidence in the record that the Club, a corporation, has ever been threatened with prosecution under the ordinance in question. It is apparent from a reading of the complaint . . . that the Club is really concerned about the activities of its individual members and is seeking an advisory decree for their benefit.

We concluded that because the Club had failed to allege or demonstrate that it faced an imminent threat of prosecution for violating the ordinance it was not entitled to eclaratory relief.

With the nationwide increase in gun sales and gun ownership more, persons are suffering injuries and death as a result of the negligent acts and omissions of the gun owner. Thus far, the laws have protected the gun manufacturers and distributors from the same strict liability laws that apply to other companies that manufacturer dangerous products. Once we have gun manufactures being held liable and required to have liability insurance, then there will be some form of gun control. Until then, the injured consumer has to look to the purchaser of the gun for compensation.

We read where someone who has a permit to carry and is legally in possession of a concealed weapon, accidently drops the gun in a hotel lobby and shoots a family member on vacation at a Florida hotel.

Newspapers, internet news and television nightly news programs frequently report about one family’s child shooting a playmate who is unaware of the danger at another child’s home or backyard.

In one Florida case, Gottner kept a Glock pistol with a laser sight in his vehicle’s center console. Gottner kept a spare key inside the vehicle’s gas cap. Gottner knew that his seventeen-year-old grandson, David, was aware the key was kept there.

David and his seventeen-year-old friend, Billy Mack, used the key to enter the vehicle and take the pistol without permission. Billy was playing with the laser at Zuver’s house when the gun discharged, injuring Zuver.

Zuver sued Gottner, claiming he was “under the duty to exercise the highest degree of care towards” him. He requested that the jury be instructed that Gottner “had a duty to use the highest degree of care for Nathan Zuver’s safety” and that the reasonable care required of the owner of a gun is the highest degree of care.  In such a case negligence of a gun owner may consist either in doing something that would not be done or in failing to do something that would be done by very careful persons under the conditions and circumstances then affecting the gun owner.

Instead, consistent with Florida Standard Jury Instruction 4.1, the trial court instructed the jury that:

Negligence is the failure to use reasonable care.   Reasonable care is the degree of care which a reasonable careful person would use under like circumstances.   Negligence may consist in [sic] either in doing something that a reasonably careful person would not do under like circumstances or in failure to do something that a reasonable careful person would do under like circumstances.

Zuver argues that a gun is a dangerous instrumentality and that a person handling a gun must exercise “the highest degree of care,” citing Kitchen v. K-Mart Corp., 697 So.2d 1200, 1206 (Fla.1997). Kitchen addressed whether the seller of a firearm could be liable to a third party for selling a gun to someone known to be intoxicated who then uses the weapon against the third party.

In finding that these facts stated a claim, the Florida Supreme Court adopted Restatement (Second) of Torts § 390 (1965), which imposes liability for negligent entrustment of a chattel, holding that “the theory of liability advanced by Kitchen falls squarely within traditional and well-established principles of common law negligence in Florida․” Kitchen, 697 So.2d at 1208.

In analyzing whether Kitchen was within the foreseeable zone of risk created by K-Mart’s actions, the court, citing to Skinner v. Ochiltree, 148 Fla. 705, 5 So.2d 605 (1941), and McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992), noted the well-established common law principle that a gun is a dangerous instrumentality and that one who handles a gun, therefore, must exercise the highest degree of care.

Zuver seizes on that reference to argue that the court has elevated the duty owed by a gun owner to safeguard his weapon to something higher than a reasonable man standard.   Neither Skinner nor McCain requires the imposition of the higher standard of care that Zuver seeks to impose.

In Skinner, the nineteen-year-old plaintiff was operating the spring target ejector in the “high house” at a skeet shooting range.  5 So.2d at 606.   The high house was equipped with an aperture through which the plaintiff ejected the target once the gunmen yelled “pull.”  Id. The plaintiff had time to move his head and shoulders below the aperture for protection when the target was released.  Id. at 607.   He was seriously wounded when the defendant fired without giving the command “pull.”  Id. at 606.

While the court noted that some jurisdictions classify firearms as dangerous instrumentalities, the use of which is subject to the highest degree of care, the case centered on whether it was error to fail to instruct the jury consistent with concepts of negligence. The court concluded that it was.

In McCain, a mechanical trencher operator was injured when the trencher struck an underground electrical cable.  593 So.2d at 501.   The defendant’s employee previously had marked the areas where the trencher could safely be used, and there was evidence the operator was in a “safe” area when the cable was struck.

The Florida Supreme Court reversed the district court’s holding that the injury was not foreseeable, noting that foreseeability is relevant in two ways:  to determine whether a duty is owed, a question of law, and to determine whether violation of the duty proximately caused the injury, a question of fact.

The court noted that whether a duty is owed is dependent on whether a defendant’s conduct foreseeably creates a “zone of risk.” The court held that a duty was created under the fact pattern presented, but that whether the employee’s conduct foreseeably and substantially led to the plaintiff’s injury was properly a question for the jury.

Kitchen, Skinner, and McCain addressed only whether a duty was owed, not the degree of duty owed. They recognized the general, common sense proposition that as the risk becomes greater, the care expected becomes greater because the zone of risk is greater:  a reasonable man is more careful with a machete than a butter knife because he is more likely to cause injury to more people if the machete is mishandled.

Every day in our community we see restaurant customers seated outdoor listening to music enjoying Florida weather and good food. We never consider that the danger of driver leaving the roadway going and driving over the sidewalk into the dining area and killing or injuring anyone seated at our table or next to us. We expect all drivers to follow the rules of the road. We want to feel safe in our environment and never consider a driver having a medical issue or worse, intentionally driving into the crowd.

One case in Miami, Florida stands out because the restaurant had experienced problems before for the code enforcement authorities failed to enforce the local codes which were violated. The café should have closed until the safety precautions were taken. Was the owner of the café granted a pass by the Mayor? 

In the underlying case, plaintiffs Erika Vila, Virmari Pettis, Maria Sosa, Barbara Weiss, and Mary Jo Weiss brought a personal injury action against defendants Lemoni Café, Inc., 3G Investment Group, Inc., Belony Alterma, and La Pizzeria Di Lemoni, Inc.

The action arose from an October 4, 2014 incident in which several sidewalk diners at the Lemoni Café were injured when a vehicle crashed into them. Months before the incident, Lemoni Café and La Pizzeria Di Lemoni, Inc., were twice cited by the City of Miami’s Code Enforcement Board for operating an illegal sidewalk café. The citations were issued in December 2011 and March 2014. After the March 2014 citation, a Code Enforcement Board hearing was scheduled for June 3, 2014, but it was continued and ultimately never held. Months later, the incident occurred. 

As an affirmative defense, Defendants claim that the City of Miami was negligent by failing to properly maintain the roads, the intersection, and the area where the incident occurred, and by failing to control the traffic and speed of cars in that area.

Plaintiffs have deposed at least seven City of Miami employees to determine whether the Mayor’s Office authorized the Lemoni Café to continue operating its sidewalk café and how Lemoni received a continuance of the June 2014 code enforcement hearing.

In response to Plaintiffs’ notices to depose City of Miami Mayor Tomás Regalado and City Manager Daniel Alfonso, the City filed motions for protective orders.

The motions argued that Plaintiffs cannot compel the mayor and city manager’s depositions because they failed to demonstrate that the mayor and city manager were uniquely able to provide relevant information which could not be obtained from other sources. Following a November 2016 hearing, the trial court denied the motions for protective orders and ordered that the depositions be completed. The City timely filed its petition for writ of certiorari and this court granted the City’s motion to stay the depositions.

Here, Plaintiffs seek to depose the mayor because the defendant cafés and landlord claim that after they received the citations, the mayor’s office permitted the illegal sidewalk cafés to continue operating. Specifically, a representative for the landlord stated in deposition that a representative from the mayor’s office gave him this express permission.

Plaintiffs seek to depose the city manager because after the incident, he investigated the matter to determine why the June 2014 hearing never occurred. And as the past director of code enforcement stated in deposition, she was demoted by the city manager after the incident because she “didn’t have the answers for why this case was not heard” by the Code Enforcement Board.

In short, Plaintiffs seek “to discover how it was that Defendant Landlord obtained a special favor from the Mayor’s office (or possibly the City Manager) allowing the tenants to continue their illegal sidewalk cafes.”

Florida Rule of Civil Procedure 1.280(b) allows a party to discover “any matter, not privileged, that is relevant to the subject matter of the pending action” or which “appears reasonably calculated to lead to the discovery of admissible evidence.” “[T]rial courts have broad discretion in overseeing discovery matters and in granting and denying motions for protective order.” Remington Lodging & Hosp., LLC v. Southernmost House, LTD, 206 So. 3d 764, 764 (Fla. 3d DCA 2016).

We conclude that the trial court did not depart from the essential requirements of law in compelling the depositions of the mayor and city manager. Plaintiffs sought the discovery by first deposing seven City of Miami officials who presumably would have known how and why Lemoni Café’s illegal sidewalk café was permitted to continue operating after receiving two citations from code enforcement.

Among these deposed officials are the code enforcement director, a code enforcement supervisor, and a representative from the mayor’s office. But each official testified that they did not know. The City has failed to identify a specific individual who could provide the information that Plaintiffs seek The City of Miami’s Petition was denied.

Florida has a statue that protects any person involved in a motor vehicle collision from having their words used against them in a civil trial or criminal trial. It is called the accident report privilege and it is F.S. 316.066 (4). The relevant language states as follows:

(4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 are not confidential and are admissible into evidence in accordance with the provisions of s. 316.1934(2).

This “accident privilege” does not apply to other persons who may come to the scene such as family members, friends, para-medics and EMS technicians. Why is that of concern or of importance?

Well, a recent case, the court overturned a jury verdict finding that the exclusion of what a party said to the EMS technician should have been known to the jury. The statement may have changed jurors’ minds on who was really to blame for the collision.

The case involved a motor vehicle collision which arose on the afternoon of December 8, 2012. While in the course and scope of his employment with Ring Power, Mr. Quandt was driving a large service truck owned by Diesel Construction northbound on I-75 in Pasco County. Mr. Quandt’s truck collided with a Ford Expedition driven by Mr. Condado and occupied by Ms. Rodriguez, which was also travelling northbound on I-75. Mr. Quandt’s truck then collided with a third vehicle.

It was undisputed that there was a mattress in the northbound lanes of the interstate, causing cars to stop or swerve unexpectedly. Further, the parties agreed that there were two northbound lanes of I-75, a median between the north and southbound lanes, and a narrow shoulder adjacent to that median. The agreed-upon facts end there; the parties gave opposing versions of what occurred.

Mr. Condado alleged that he did nothing to contribute to the accident. He claimed that for two or more miles prior to the accident he had been travelling in the left lane. He stated that he saw traffic slowing ahead of him due to someone pulling a mattress out of the roadway and claimed he did not suddenly swerve from the right lane into the left lane in front of Mr. Quandt’s vehicle. Mr. Condado testified that he saw Mr. Quandt’s vehicle directly behind him; he alleged that Mr. Quandt was driving too fast and following too closely. When it appeared that Mr. Quandt’s vehicle was going to rear-end Mr. Condado’s, Mr. Condado steered his vehicle left, into the narrow shoulder. He testified that because of the narrowness of the shoulder, he was unable to completely exit the left lane of the interstate. He further testified that upon steering his vehicle into the left shoulder, the rear of his vehicle was forcefully struck by Mr. Quandt’s large service truck, causing Mr. Condado’s vehicle to roll over. As a result of the roll over, Mr. Condado and Ms. Rodriguez suffered significant injuries.

Mr. Quandt claimed that the accident was caused entirely by Mr. Condado suddenly and unexpectedly swerving from the right lane into the left lane and then into the left shoulder, directly into Mr. Quandt’s path of travel. Mr. Quandt testified that the mattress was less than 100 yards away when the traffic in front of him reacted by slowing and stopping. He testified that he was able to reduce his speed significantly and that he attempted to avoid the collision with Mr. Condado’s vehicle by moving left into the shoulder and median. But because Mr. Condado swerved further into the median in front of him, the accident was unavoidable.

Ring Power’s lawyer sought to have published to the jury a statement Mr. Condado made to an EMS technician, Mr. Paton, at the time he was being treated and prepared for transport. Mr. Conaldo stated to Mr. Paton “Husband states he swerved to avoid a mattress in the road and lost control of the car and went off the road” (Mr. Condado’s statement). Mr. Paton prepared the EMS Report on the day of the accident.

The Court said this was hearsay and kept the statement from being heard by the jury. The verdict was for Mr. Condado which was reversed by the Appellate Court.

An admission is “[a] statement that is offered against a party and is . . . [t]he party’s own statement in either an individual or a representative capacity.” § 90.803(18)(a). That is, the statement need only be (1) a party’s and (2) offered against that party to qualify as an admission. Of course, the admission must also be relevant — “tending to prove or disprove a material fact.” § 90.401. Statements of a party offered by an opponent regarding causation in negligence actions are generally considered admissions. See McKay v. Perry, 286 So. 2d 262, 263 (Fla. 2d DCA 1973) (stating that party’s statement to neighbor regarding ownership of a dog in a dog-bite case would be admissible as an admission); Otis Elevator Co. v. Youngerman, 636 So. 2d 166, 167 n.1 (Fla. 4th DCA 1994) (noting that plaintiff’s statement to nurse regarding fall was an admission); Wilkinson v. Grover, 181 So. 2d 591, 593-94 (Fla. 3d DCA 1965) (concluding that plaintiff’s statements to physician as to how fast plaintiff was driving at time of accident were admissions). However, the statements of a party need not speak directly to liability to be admissions. See, e.g., Jones v. Alayon, 162 So. 3d 360, 365 (Fla. 4th DCA 2015) (concluding that statement by party regarding how money was spent was an admission). “It is well settled that an admission against interest may be introduced into evidence as substantive evidence of the truth of the matter stated.” Seaboard Coast Line R.R. Co. v. Nieuwendaal, 253 So. 2d 451, 452 (Fla. 2d DCA 1971); accord McKay, 286 So. 2d at 263. “This is so even though the person making the admission against interest subsequently denies making such admission.” Seaboard Coast Line, 253 So. 2d at 452; see also Charles W. Ehrhardt, Florida Evidence § 803.18 (2014 ed.) (“If a statement is offered as substantive evidence under [section 90.803(18)] it is not necessary to lay a foundation by asking the individual who made the statement whether he or she did so.”).

Here, Ring Power sought to introduce Mr. Condado’s statement — attributed to Mr. Condado and included in a properly admitted business medical record — as evidence against Mr. Condado. It clearly meets the statutory requirements of an admission.

Mr. Condado maintains that because he challenged the trustworthiness of the EMS Report and his statement within it, his statement was properly excluded. Provided that medical records, including EMS records, otherwise meet the requirements of a business record under section 90.803(6)(a), their trustworthiness is presumed. Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So. 2d 840, 842-43 (Fla. 1st DCA 2000) (citing Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994)). However, the party opposing the introduction of the medical records may rebut that presumption. Love, 634 So. 2d at 160 (“[T]he burdens is on the party opposing the introduction to prove the untrustworthiness of the records.”).

In this case, a very favorable verdict for the injured party was reversed the and the case sent back to the trial court for a new trial. Certainly, we can all can understand the pressure and stress of being injured and saying things that come out differently than what you were thinking. On the other hand, if the statement in this case was was the truth then and conflicted with the trial testimony, a new trial was needed. In any event, conversations with the EMS technicians are generally only about what hurts and what your injuries are. The EMS technician is not generally concerned with fault but in your injuries.